Williams S. v. County Court Of Lincoln County.

• Decision Date: 24 January 1922
• Citation: 90 W.Va. 67
• Parties: A. B. Williams et als. v. County Court of Lincoln County.
• Court: West Virginia Supreme Court

90 W.Va. 67

A. B. Williams et als.

v.County Court of Lincoln County.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1922.

Decided January 24, 1922.

1. Counties Highways County Court Cannot be Sued for Money Due on Contract Until Itemized Statement Presented and Refused; Claims for Breach of Contract for Road Building Must be Presented Before Suit Thereon.

A suit cannot be maintained against a county ccurt upon any claim for a sum of money founded on contract (except a county order) until an itemized statement thereof has been presented to the court, or filed with its clerk, and the court has refused to allow such claim in whole or in part, or has refused to act thereon as provided in sections 40 and 41 of chap. 39, Code, 1918. A claim for damages arising out of a breach of contract for road building is such a claim as is required to be so presented to a county court. (p. 70).

2. Contracts Instruction as to Rights of Parties After Breach Held Properly Refused.

An instruction which in effect tells the jury that if one party to a contract has broken the same in the "first instance", that then the other party (at any time thereafter during the performance of the contract) may regard the cantract as broken, quit performance of the same and maintain suit for the amount then due him, is erroneous and misleading and properly refused in a case where, after the alleged breaches, the other party continued performance thereof and received payments thereon as provided in the contract. (p. 71).

3. Trial Instruction Assuming Facts Not Supported by Evidence Properly Refused.

An instruction which assumes a fact of which there is no competent evidence is properly refused. (p. 72).

4. Appeal and Error Error, Predicated on Improper Evidence Not Objected to, will Not be Considered.

Error, predicated upon the introduction of improper evidence which has been permitted to go to the jury without objection or exception, cannot be considered in the appellate court (p. 73).

Error to Circuit Court, Lincoln County.

Action by A. B. Williams and others against the County Court of Lincoln County. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Daugherty & Young, for plaintiffs in error. Jacob D. Smith and D. E. Wilkinson, for defendant in error.

Lively, Judge:

From a judgment against him of nil capiat rendered by the'circuit court of Lincoln County on the 14th day of December, 1920, plaintiff prosecutes error.

The summons was in assumpsit, and the declaration avers that defendant entered into a written contract with plaintiffs by which the latter were to build and construct the grade for a certain county road between East Hamlin and West Hamlin for which defendant promised to pay certain stipulated prices for various items of the work, and for certain material used by plaintiffs therein such as concrete culverts, pipes, drain tile, and the like; and that defendant agreed to furnish grade line stakes and guides by which to carry on the work, and cause estimates of the work to be made each month by an engineer, on which payments were to be made on or before the 20th day of each month; but that defendant failed to carry out its contract in that it failed to furnish grade lines, stakes and locations, refused to make up said estimates and refused to make payments as agreed, by reason of which failures plaintiffs were damaged $10,000.00; and that plaintiff had performed work under contract amounting to $34,-856.10 but that defendant had failed to pay for same except such credits as were shown by an account filed with the declaration, to the damage of plaintiff $10,000.00. There was no demurrer interposed. The general issue of nonassumpsit was made up, and defendant filed notice of recoupment. Williams, one of the plaintiffs, testified to the correctness of his account filed as a bill of particulars and which amounted to $34,412.76, including an item of $500.25 for dynamite and powder used and paid for by him which last item he claimed should have been furnished by defendant at its own expense under the terms of the contract. To this sum of $34,412.76 he added the further sum of $1,392.00 which he claimed as damages for delays occasioned by failure of defendant to furnish line stakes as required and by changing the grade. The credits he admitted amounted to $29,-530.76, leaving due him the sum of $6,274.00. Defendant proved by S. E. Bradley, J. E. Doyle, both engineers, and others that the work done by plaintiffs, including force account, amounted to $30,183.79 and that defendant had paid thereon $30,157.88; and that it had furnished plaintiffs supplies consisting of dynamite, powder, caps, fuse and the like, amounting to $1,632.18, and that plaintiffs had been over paid by defendant the sum of $1,606.27. An effort was made to show under the notice of recoupment that it had or would cost defendant something like $20,000.00 to complete the contract after plaintiff has given it up, more than it would have cost if plaintiff had completed it under its terms. This evidence was given by Engineer Bradley. It is not clear from the record whether or not this evidence was excluded. A motion to exclude all of this witness' evidence as to custom of interpretation of the word "material" as used in road contracts, "and so forth" made at the conclusion of his evidence was sustained. Whether the "and so forth" included his evidence on the recoupment is uncertain; but the county court is not complaining. No evidence was offered by plaintiff to contradict the evidence of Bradley on the matter of recoupment.

An instruction was offered by defendant to the effect that if the jury believed that plaintiffs failed to complete the work provided for in the contract, and that defendant on account thereof was compelled to readvertise and relet the same; and that it cost more money by reason of plaintiffs' failure to comply with the contract, then defendant had the right of offset to the amount of the difference between the contract price, and what it actually cost under the reletting, unless the jury further believed that plaintiffs' failure was caused by the action of the county court. This instruction was refused, whether because it was inaptly drawn, or because of the evidence on which it was predicated, does not appear.

One of the grounds assigned as error is that the court "allowed the recoupment to go to the jury without evidence to support it." We do not perceive the relevancy of the objection. If the evidence was excluded, plaintiff was benefitted and cannot complain. Certainly defendant had the right to file notice of recoupment and attempt to introduce evidence to sustain it. There was evidence tending to show that up to September 5, 1918, there was no serious friction in the performance of the contract. About that time a difficulty arose between Bartrug, the engineer who was connected with the road making and employed by defendant to oversee this work, and plaintiff Williams, possibly a serious altercation arose between them, degenerating into a fight, and then plaintiffs announced that they would not continue in the work under Bartrug, and wanted a final settlement and release from the contract. Then it was that Bradley and Doyle, both competent engineers, were called in to make the final measurements, both parties agreeing to abide by their measurements. Possibly the court refused the instruction on the recoupment evidence for this reason. The evidence tended to show that plaintiffs desired to cease the work, with consent of defendant.

Plaintiffs' evidence relative to their damages was excluded because this claim had not been presented to the county court or filed with the clerk prior to the institution of the suit as provided in chap. 39, sees. 40 and 41, Code, 1918. Under this statute every person having a claim or demand against a county "shall file with the clerk of the county court thereof an account or...